Circumcision is the amputation of the prepuce from the
rest of the penis, resulting in permanent alteration of the
anatomy histology and function of the penis [1,2]. Recently, legal scholars have challenged
the legality of neonatal circumcision [3-7]
and argued that it constitutes child abuse [8,9]. While this conjecture may seem
outlandish to American physicians, who tend to a population
in which 70-90% of the males are circumcised neonatally, such
claims have a strong foundation in legal precedent and
medico-ethical standards that aim to protect the bodily
integrity of persons.

Bodily integrity and informed
consent

Among a free society's most treasured principles are
personal autonomy, respect for the individual and
preservation of the body's physical integrity [10]. Patients are entitled to make decisions
about their medical care through a process of `informed
consent'. Medical providers must refrain from unwarranted
interventions and allow patients the individual
self-determination to control their own lives [11,12].

Incompetent persons cannot, of course exercise a right of
self determination; someone must make decisions for them.
Ordinarily this surrogate decision making is not regarded as
anyone's right. Rather, some individual is accorded the
privilege of acting as advocate for the incompetent person's
interests [13]. However, for children, the
law in common-law jurisdictions has historically ignored this
norm and has allowed parents to make medical decisions for
their minor children without having to demonstrate that their
choices were in the children's best interests. This stance is
particularly prevalent in the USA, although echoes of it are
seen in other common-law jurisdictions, especially amongst
lay people, who find ideas of children's rights
uncomfortable. However, in recent years there has been a
trend among legislatures, courts, legal scholars and
child-welfare advocates toward insistence on respecting
children, legally and morally, as distinct persons whose
fundamental needs or `welfare interests' warrant legal
protection [14], rather than viewing
children as appendages or property of their parents to be
treated however parents (within minimal limitations) see fit
[15]. Simply complying with parental
wishes is increasingly less acceptable; the child's best
interests must also be considered [16,17].
Like surrogate decision-makers for incompetent adults,
parents should be able to demonstrate that their judgement is
the same as that which the child would rationally choose for
himself, if able to do so. Such a demonstration should be
necessary before medical professionals may accede to the
preferences of parents regarding medical intervention for
their children. [12].

In an effort to protect the rights of children, the
American Academy of Pediatrics Committee on Bioethics
developed a policy about
informed consent in cases involving children. Informed
parental permission can substitute for consent from
the child only for medical interventions in situations of
clear and immediate medical necessity, such as an immediate
threat to the child from disease, trauma, or deformity. For
non-essential treatments, which can be deferred without
substantial risk, the physician and family should wait until
the child's consent can be obtained [18].
Such a principle should apply even more strongly in the case
of circumcision, which carries significant potential for
causing serious harm. The committee emphasized the duty of
the physician to protect the patient (the child) from
parental desires that might be detrimental to the child.

United States
case law

American case law clearly protects the bodily integrity of
incompetent individuals. For example, doctors may not
sterilize or administer contraceptives to a mentally retarded
woman, regardless of parental desires, without showing it is
the least restrictive means available for protecting the
woman's interests [19]. Similarly, courts
have limited the authority of parents to secure medical
intervention for the child. In Wisconsin v
Yoder, the US Supreme Court held that parental
authority may be limited `if it appears that parental
decisions will jeopardize the health and safety of the child'
[20]. Lower courts have refused to allow
parents to secure non-medically indicated procedures on
children. For example in Little v Little, the
guardian ad litem of a 14-year-old mentally
incompetent, but otherwise perfectly healthy girl applied at
the behest of the girl's mother for an order authorizing the
mother to consent to the removal of a kidney from the girl's
body, for the purpose of transplanting the kidney into the
girl's brother who was suffering from end-stage renal
disease. A Texas Court of Appeal rejected the request,
holding that the `power of parents to consent to surgical
intrusions upon the person of the minor...is limited to the
power to consent to medical "treatment".' [21]. To date, all courts have held that
surgical removal of a normal, healthy, uninjured part of the
body is not `treatment'. In a transplantation case similar to
Little v Little, a Louisiana Court of Appeal ruled that
surgery could not take place and accorded `protection to a
minor's right to be free in his person from bodily intrusion
to the extent of the loss of an organ unless such loss be in
the best interest of the minor'. [22].

United
Kingdom

Under English law, assaults ranging from common assault to
inflicting grievous bodily harm are offences under the
Offences against the Person Act 1861. The Children and Young Persons Act 1933 makes
willfully assaulting a child an offence. The
Children Act 1989 requires that paramount
consideration be given to the welfare of the child and the
child's wishes [23]. Newborns can only be
a subject of a research trial if the risk is no more than
minimal and the child stands to benefit directly [24]. The UK Department of Health guidelines
similarly provide that `those acting for the child can only
give their consent provided that the intervention is for the
benefit of the child. If they are responsible for allowing
the child to be subjected to any risk (other than one so
insignificant as to be negligible) which is not for the
benefit of the child, it could be said that they were acting
illegally' [25]

In Queensland, Australia, the Queensland Law Reform
Commission concluded that `on a strict interpretation of
the assault provisions of the Queensland Criminal
Code, routine circumcision could be regarded as a
criminal act' [26].

International Law

International human rights law clearly protects the child
from unnecessary bodily intrusion [27].
The Convention on
the Rights of the Child [28] calls
for states that are parties to the convention to ensure that
no violence, injury, or abuse occurs while the child is under
the care of a parent or legal guardian (Article 19.1). It
requires that children be protected from torture, from any
cruel, inhuman, or degrading treatment or punishment (Article
37a), and from unlawful interference with their privacy
(Article 16), Similarly, the Declaration of the
Rights of the Child stipulates that children must be
protected from all forms of cruelty, neglect and exploitation
[29]. This respect for bodily integrity is
also reflected in the European Charter for
Children in Hospitals, which states that `every child
shall be protected from unnecessary medical treatment and
investigation'. [30]

Can
involuntary circumcision be lawful?

The test for the lawfulness of a surgical intervention on
a child has three parts; the intervention must be medically
necessary [21,26,31], must be in the best
interests of the child [22,23,26,32,33],
and must not expose the child to unnecessary suffering or
injury [24,25,34]. When a child has an
illness, a medical or surgical intervention selected to
facilitate the child's recovery can be justified. On the
other hand, when healthy flesh is amputated from a healthy
organ in a healthy child, the intervention is presumptively
unlawful and the onus lies upon those who conduct the
amputation to demonstrate that it satisfies the three part
test. Justifications for neonatal circumcision have taken
several forms, but as discussed below, under close scrutiny
all of these purported justifications fail to satisfy these
criteria.

`Neonatal circumcision is not child abuse because
parental consent is given'

In the USA, parents sign a consent form that allows
physicians to medically intervene on their children, and some
physicians may believe that this absolutely absolves them of
legal responsibility. However, if left unchecked, parents can
then act to the detriment of their child., who is vulnerable
and at the parents' mercy [35], so several
safeguards exist.

First, parental consent in only effective for
interventions that are in the child's best interest. Routine
circumcision involves the painful removal of healthy tissue
from a child and thus involves significant physical harm.
Without medical benefits that outweigh this harm,
circumcision must be deemed contrary to a child's best
interests (see the following discussion of costs and
benefits). When a conflict
between parental preferences and the child's interests
arises, the physician must protect the child, who is after
all the physician's patient. [18]. In
such cases, a replacement for the surrogate should be sought
[10]. Court authority should be obtained
for any surgery that is invasive, irreversible, or major; if
there is a significant risk of making the wrong decision; or
if the consequences of a wrong decision are particularly
grave. [36]. As for the circumcision of
males (like circumcision of females) is clearly invasive and
irreversible, and arguably has substantial consequences for
the person circumcised, court authority should be required
for all circumcisions not required by exigent medical
necessity. While on the face if it this may appear excessive,
this rule is necessary to protect the individual's
fundamental and legally protected rights, which despite the
clear law have been ignored or over-ridden by dogmatic
parents and /or complaisant doctors. Difficulty in accepting
this conclusion may arise from a resistance to recognizing
that infants have rights of their own.

The same point might be made by viewing parental consent
as surrogate decision-making. Surrogates are expected to make
decisions based on what the incompetent patient would want
for himself if competent. Significantly, among males in the
USA who were not circumcised as children, only 0.3% choose to
undergo circumcision later in life [37]
This suggests that parents who elect to have their sons
circumcised violate this principle of substitute consent.

Second, parental permission is reserved, even for
medically indicated interventions, to those that cannot
safely wait until the child can be involved in the
decision-making process. Even if there were sufficient
medical benefits to outweigh the evident harms, would there
be any harm in waiting to circumcise? Would most of the
supposed medical benefits still be realized if a male chose
to be circumcised upon becoming competent to decide for
himself? Are there significant benefits in postponing the
operation for months or years rather than performing it on a
newborn? Significantly, although circumcision is the most
frequently performed operation on children (indeed it is the
most frequently performed surgery in the USA) a recent review
article addressing the optimal timing for urological
procedures in children did not even mention circumcision [38], suggesting either that their is no
urgency to performing circumcisions immediately after birth
or, more probably, that this surgery has not been given the
attention it deserves. While a few urinary tract infections
may be prevented with neonatal circumcision [39], the reported complication rates in the
newborn period (2.0% [40] to 6.4% [41] are higher than those reported in
circumcisions later in life (1.7% [42,43]). The risk of meatal stenosis after
circumcision may be reduced if the surgery is delayed until
after toilet training. [44]. While general
anaesthesia is considered too risky for neonates, the results
of attempts to control the pain with topical and local
anaesthetics, although better than no anaesthetic, have been
lackluster [45-50]. Postponing
circumcision until the risk of general anaesthetic is more
acceptable would be in the child's best interest.

In Australia, the Queensland Law Reform
Commission neonatal circumcision `consent by parents to
the procedure being performed may be invalid in the light of
the common law's restrictions on the ability of parents to
consent to the nontherapeutic treatment of children'. [26] Likewise, in Re Z [32] a UK court ruled that it `could refuse to
permit a parent's exercise of parental responsibility even
though it was bona fide and reasonable, if it was
contrary to the child's best interests'. This invalidation of
parental consent to an unjustified procedure has been
suggested as applying to treatment performed with `consent'
but without cause or excuse'. [31]. Thus,
in those jurisdictions, parental privilege clearly does not
extend to procedures not required by medical necessity
including purely cosmetic surgery. The over-riding criterion
of the child's best interests limits parental power [36,51]. It is understood that what is in the
parents' or family's best interest is not automatically in
the child's best interest [26]. The
child's best interests must be determined objectively, and
parental preference is irrelevant.

Third, any parental consent to circumcision must be
informed consent, and the actual process for obtaining
parental consent to circumcision in the USA typically falls
far below the standard for other surgery [52]. Physicians performing the operation
often know little about the prepuce or the care of the
normal, uncircumcised penis [53]. Not
surprisingly, this low level of knowledge in physicians is
paralleled by a similarly poor level of parental knowledge
about the complete penis [52,54]. In
addition, doctors typically do a poor job of communicating
information to parents, such as the surgical risks inherent
in circumcision. [55].

Fourth, parental consent cannot be valid if any coercive
elements affected or induced the granting of consent [56]. Nevertheless it is routine in the USA to
ask a woman during a prenatal visit or on admission to the
obstetrics ward [57] whether she desires
circumcision for her child if it is a boy [58]. Offering a medically unnecessary surgery
that will benefit the physician and hospital but not benefit
the patient is clearly unethical [59].
Such a practice is a subtle but no less insidious form of
coercion. Offering circumcision to a mother is often
interpreted as a recommendation [52,58,60]. Mothers are left with the
impression that `it must be the thing to do, or our doctor
would not have told us about it'[61].
Given the perinatal emotional upheaval, parental consent in
the neonatal context is rarely , if ever freely given [62]. The epitome of absurdity is Wiswell's
suggestion of obtaining informed parental refusal [63].

To summarize, reliance on parental consent for neonatal
circumcision is inadequate unless proof is provided that
circumcision provides medical benefits outweighing the harms
it occasions, that the health of the child would be
significantly prejudiced by postponing the procedure until he
is capable of giving effective consent to it himself, and
that parental decisions are fully informed and uncoerced.

`Neonatal circumcision is not child abuse because it
has medical benefits'

Is the prophylactic value of neonatal circumcision enough
to justify violating a newborn's bodily integrity against his
will? (The use of restraints and the degree and character of
crying [64,65] show that the child
undergoes circumcision unwillingly.) Currently surgical
prophylaxis has been assessed in only one other instance [66]. Because the risk of breast cancer and
ovarian cancer are significantly increased with BRCA1
and BRCA2 mutations, and their presence can be
detected, women with these mutations may consider
prophylactic mastectomy or oophorectomy. Even in the average
30-year-old woman with out these genetic markers,
prophylactically removing both breasts and ovaries would add
an additional 8 months in life expectancy. In either case,
such prophylactic surgery is considered a `highly personal
decision' made only after clear discussion of its effects on
medical outcomes, and despite the increase in life-expectancy
for the average woman, the authors of the study concluded
that `prophylactic surgery is obviously unreasonable for
these women'. [66]. Yet, for every cancer
death for penile cancer in the USA, 264 women will die from
either ovarian or breast cancer [67]. If
prophylactic mastectomy and oophorectomy at age 30 are
considered `obviously unreasonable' [66],
why should prophylactic circumcision be considered
`reasonable' when the benefits, existence of which are
dubious, are markedly more remote? One study found that
circumcision decreased the number of quality-adjusted years
by a mean of 14h [68], while another found
a mean increase of just 10 days [69].

The assumption that neonatal circumcision has prophylactic
value has never been conclusively proven [68-71]. Haberfield, who has written in
defence of circumcision, relies heavily on asserted benefits
in asserting its legality [72]. By doing
so, that author shows ignorance of the law, the medical
evidence and the thrust of the QLRC report [26] In contrast, that author argues that
female circumcision is properly classified as illegal by many
Western countries because it has no medical benefits
acknowledged by Western medicine [72].
These arguments are fundamental flaws. First, female
circumcision has in the past been proposed by some medical
professionals as possessing many of the same medical benefits
that supporters of male circumcision currently argue result
from the latter procedure [73]. If studies
of a quality comparable to that of the studies that have
purported to show a medical benefit for male circumcision, a
medical benefit for female circumcision might be
`demonstrated' as well. Moreover with both male and female
genital alteration, the persons responsible for performing
the procedures, as well as the respective cultures as a
whole, validate the importance of childhood genital surgery,
and for many of the same asserted reasons [74].

Second, Haberfield largely ignores the costs involved in
circumcision. While amputating a foot to prevent ingrown
toenails could be construed as a benefit, one clearly needs
to incorporate the decision-making process due consideration
of the risks, complications and loss of function resulting
from the proposed procedure. Neonatal circumcision has
repeatedly been shown to be cost-ineffective and to have an
overall detrimental effect on health [68-71]. These findings negate any argument
that the procedure's asserted benefits override a child's
rights to bodily integrity and health, both of which are
protected by international human rights standards [5,7,28]

The Convention
on the Rights of the Child [28]
requires all nations to respect the child's right to enjoy
the highest attainable standard of health (Article 24). The
Convention calls for the abolition of traditional practices
prejudicial to the health of children (Article 24.3).
Unnecessarily exposing a child to health risks (including
death), pain and genital alteration clearly contravenes these
provisions. The Convention of the Rights of the Child
has attained a rare level of international authority because
it has been adopted by every nation in the world except the
USA and Somalia.

`Neonatal circumcision is not child abuse because it
constitutes only "minor surgery"'

Haberfield's argument that circumcision is allowable
because it is not `major surgery' [72,75]
conflicts with the conclusion of the QLRC [26]; Haberfield provides neither evidence or
discussion. The analysis suggests that Haberfield is
unfamiliar with the procedure, which clearly qualifies as
major amputative surgery, and misstates the effect of the
legal position. The all too common comment that `minor
surgery' is surgery that `someone else undergoes' applies
here. Circumcision performed on older children and adults
often requires general anesthesia with a mean recovery time
of nearly 2 weeks [76]. Although newborns
have a lower pain threshold than older infants, children and
adults [77], the vast majority of newborn
circumcisions in the USA are performed with little or no
anesthesia [78].

During the circumcision, a baby's blood oxygen level
decreases [79]; his heart rate,
respiratory rate, blood pressure and stress measures increase
dramatically [80-84]. His cry takes on a
surprisingly high-pitched piercing cry observed only when a
baby experiences excruciating pain [64,65]. He may completely dissociate, a
response that is similar to post-traumatic stress disorder.
He may become oddly quiet in apparent despair at the lack of
any available escape from his ordeal [85].
Nearly 20% of those circumcised without anaesthesia will have
apnoea/choking episodes [49] consistent
with an apparent life-threatening event [86,87].

A boy's sleep pattern is altered after circumcision, with
light sleep increasing and deep sleep decreasing in the
period after surgery [81,82,88,89].
Infants who are circumcised have been observed to suck
harder, faster and more vigorously at their bottles, making
them less available to their surroundings, and less able to
interact with their mother [90,91].
Feeding also deteriorates after circumcision [45].

Even if the complications from the procedure are ignored,
the penis is markedly altered. Circumcision amputates nearly
all the fine-touch neuroreceptors [1],
thickens the epithelial layers of the exposed glans, reduces
the mobility of penile shaft skin, and results in different
sexual behavioural preferences [92,93].

The QLRC (Australia)
stated that `in the absence of "real" consent, circumcision
would fall under the definition of assault under s.245 of the
Queensland Criminal Code. It might also be an offence
endangering life or health'. [26] Some
would even argue that the practice of neonatal circumcision
constitutes torture, because of the intense and unwarranted
pain the newborn suffers, and torture is clearly condemned by
international instruments such as the Convention
Against Torture [94] and the Universal Declaration of
Human Rights [27].

`Neonatal circumcision is not child abuse where it is
performed pursuant to a religious requirement'

While the USA Constitution prohibits government from
interfering with religious beliefs, it does not protect
practices performed in the name of religion that are harmful
to society [95] or to another individual
[96,97]. Rights of religious freedom do
not relieve an individual's obligation to comply with valid,
neutral law of equal application [98-104].
Likewise the Convention on the Rights of the Child [25] (Article 14.3), the International Covenant
on Civil and Political Rights [105] (Article 18.3), and the American Convention of Human Rights (Article 12.3
all provide that the free exercise of religion is protected
so long as it does not violate public safety, order, health,
or morals, or the fundamental rights of another human
being.

The European
Convention on Human Rights (1950) contains similar
provisions and is in the process of being incorporated into
the Human Rights Bill in the UK. Although the Bill currently
before Parliament contains amendments by the House of Lords
exempting mainstream religions, it is likely that the UK
Government will remove or change those amendments so that the
Bill follows the requirements of the Convention. Even without
changes to the Bill as it now stands, there will be nothing
to stop an aggrieved person, who complains that his protected
rights have been damaged and that remedies have been made
unavailable in domestic courts because of the defective
incorporation of the Convention, from seeking remedies in the
European Court of Human Rights.

Given the significant lifelong harm caused by
circumcision, the clear human rights violations entailed by
the procedure, and the absence of genuine medical benefit,
circumcision cannot be justified by appeal to the rights of
religious freedom of parents or of religious communities. It
is a mistake to understand anyone's right to religious
freedom to include a right to make decisions regarding the
medical care of another person. Rights in our culture protect
individual self-determination, which includes control over
one's body but which clearly does not include control over
the body of another. Thus, regardless of how fervently a
person may wish to decide what will happen to another's body,
we simply do not understand that person's constitutional
liberties to include that decision-making power. In fact we
deem that person's religious convictions to be entirely
irrelevant in deciding what rules he or she must abide by in
interacting with or making decisions on behalf of others. [33]

The US Supreme Court endorsed this conclusion in Prince v.
Massachusetts [106]. In deciding
a conflict between parents' religious beliefs and children's
physical well-being, it ruled that `parents may be free to
become martyrs themselves but it does not follow that they
are free to make martyrs of their children before they have
reached the age of full and legal discretion when they can
make that choice for themselves'. The religious beliefs of
the parents, over which the child has no control, cannot be
used to excuse harming the child's temporal interests [96] nor can they entitle the parent to
control the child for the parents' benefit [33].

In English law, all factors must be taken into account in
deciding what are the best interests of the child [33]. Thus parents' religious beliefs are only
one factor among many when looking at non-therapeutic
circumcision, and should be relatively unimportant when
making a decision about circumcising children.

Furthermore it would be improper to impute any religious
beliefs to children: doctors are no more in a position to
assume what a person will believe when he grows up than are
parents. Parents choosing circumcision for religious reasons
may in fact be violating the child's own religious freedom,
including the freedom to change religious beliefs [20, 107-109]. Children should therefore not
be compelled to undergo a painful medically unjustified
surgery that alters their genitals mere because the procedure
is considered by some members of a religion to be essential
to that faith. The procedure may well be inconsistent with
the dictates of other religions that the person, who is
presently an infant might select when he becomes an adult.
The common use of the phrase `Jewish or Muslim boy' reflects
our inability to approach the decision from the infant's
perspective. These are boys of Jewish or Muslim parents; they
have yet to determine their own religion. Cutting a child's
genitalia takes away his right to choose whether to be marked
with the scars of that particular religion. A boy, on
reaching maturity, may resent a permanent change to his
genitals made without his approval for a religion he did not
accept.

Thus Etchells et al. [110] are
misguided when they suggest that physicians should base the
content of their informed decision on parental motives. They
state that `if the parents' decision is based on strong
cultural beliefs and practices, a detailed, impersonal
disclosure of all known risks and benefits would probably not
be relevant or helpful. However, if the decision is based on
personal experiences (e.g. the father was circumcised), a
detailed, impersonal disclosure of the risks and benefits
would be helpful in helping the parents to come to a
decision'. This statement contradicts their positions on
therapeutic privilege [111] and
substitute consent [112], does not
address the child's interests, and may be little more than
misplaced `political correctness' in an attempt to preserve
tradition and placate Jews and Muslims. They fail to explain
how parental motives alters the risks, benefits and treatment
options, or the physician's duty to give full disclosure.
Risks that these parents consider insignificant may well be
significant for the infant. In short, all infants deserve the
highest possible level of care, regardless of their parents'
beliefs [113].

`Neonatal circumcision is not child abuse because it
has cultural benefits"

Haberfield [72] argues that a child of
Jewish or Muslim parents may feel psychologically and
spiritually isolated from his religion and culture if not
circumcised, that a practice integral to these religions has
credible cultural value, and that ritual circumcision should
be allowed on this basis. He argues that `the autonomy of its
citizens' is of enough value that a state's intervention is
inappropriate. This prohibition `seems further inappropriate
in a multicultural society espousing tolerance for
multicultural practices'. He recognizes that multiculturalism
cannot be used as a blanket approval for all cultural
practices and argues for example, that female circumcision
would not warrant approval, and that local legislators should
be free to prohibit practices they perceive to be repugnant
to their communities [114]. However,
Haberfield provides little empirical support and no
principled thesis for treating male and female genital
alteration differently.

More reasonably, Poulter [115] argues that a tentative argument for
parents authorizing an intervention against a child's
interests can be made if the harm caused by the intervention
is compensated by sufficient advantage to others, and if the
intervention is not seriously detrimental to the child.
However, Poulter characterizes as `unlikely' a justification
based on the more remote and controversial benefit of
satisfying a deeply felt community attachment to traditional
customs'. A year later he wrote that any custom that involves
`cruel, inhumane or degrading treatment' such as female
circumcision should not be tolerated [116]; he fails to discuss male
circumcision.

While Haberfield chastises Richards for failing to
`consider the right of an individual's autonomy in a liberal
society'[75] he inexplicably fails to
recognize the autonomy of the individual whose genitalia are
to be altered. A cultural or religious community may view the
child, and more specifically the prepuce, as community
property; however, a child must be regarded as possessing the
same full rights as any adult to exclusive ownership of his
body [33]. Supposed benefits to the rest
of society are not accepted as sufficient justification for
involuntary surgery on adults. Nor should they be so accepted
with children. Such procedures cannot be justified by the
possible existence of cultural blindness regarding a
particular practice, a phenomenon that allows several clear
human rights violations to persist in various cultures
throughout the world. The QLRC states that the best
interests of the child `is a matter to be determined
objectively'. [117]. Clearly,
Haberfield's attempts to justify a harmful cultural practice
fall short of the mark.

`Neonatal circumcision is not child abuse because it is
not as damaging as female circumcision'

The notion that female circumcision is more damaging than
male circumcision may be more the product of cultural
blindness than any actual difference in severity. The
justifications given for altering the genitalia of both sexes
are strikingly similar [6,74], and several
legal scholars find the practices equally problematic [6-8]. The dramatic changes in anatomy, the
horrific complications (including death) that can arise [118-124], and the prolonged psychological
sequelae [85, 125-128] leave little doubt
as to the damaging effects of male circumcision. While the
most drastic forms of female circumcision arguably entail
greater harm than male circumcision, some forms of female
circumcision involve less drastic procedures that are
comparable in severity to male circumcision.

In any event, the human rights principles outlined above
are absolute in their protection of certain basic rights that
are violated by genital alterations, regardless of severity
[3-5]. Any genital alteration that is not
medically necessary infringes the basic human right to bodily
integrity. Statutes that safeguard females against any
alteration of their genitals while ignoring male genital
alteration are illogical in their discrimination against
males [5-7]. Such laws highlight the
artificiality of our culturally based treatment of male
circumcision.

The Fifth and Fourteenth Amendments of the US Constitution
guarantee equal protection under the laws and prohibit
discrimination on the basis of sex without an `exceedingly
persuasive justification' [129], i.e.
proof by the state that affording lesser protection to one
sex closely serves an important state interest [13]. It is therefore unlikely that American
gender-specific laws against female genital alteration could
survive constitutional scrutiny [131].
Circumcision serves no interest of the state, let alone an
important one. Case law and constitutional law in the USA
demonstrate that courts have the power and duty under equal
protection principles to extend the protection of female
circumcision statutes to boys [131-133].

Equal protection principles embedded in international law
and binding on all nations under treaty and/or customary law
similarly prohibit invidious discrimination on the basis of
gender, such as is inherent in the statutes that prohibit
only female genital mutilation but permit the continuation of
the male procedure. The International Covenant
of Civil and Political Rights [105] provides that every child must have,
without discrimination, the right to the same protections.
(Article 24.1). This is echoed in the Universal Declaration of
Human Rights, which states that all are equal before
the law and entitled without discrimination to equal
protection of the law'. (Article 7). The Charter of the
United Nations likewise calls for the `observance of
human rights and freedoms for all without distinction as to
race, sex, language, or religion'. (Article 55c) [5].

Revealingly, lawmakers in the USA have at times implicitly
acknowledged that male circumcision may constitute ritual
abuse, at least in certain circumstances. No other apparent
explanation exists for the specific exemptions for male
circumcision in the ritual abuse laws of California
(California Penal Code, para 662.83), Idaho Criminal Code,
para 18-15-06 a4.b) and Illinois (Illinois Compiled Statutes
para 5/12-32 and 5/12-33). These legislators must have
considered male circumcision ritual abuse; otherwise there
would not have been a need to include this statutory
loophole.

`Neonatal circumcision is not child abuse because it
has never been prosecuted as such'

The only judicial references to the lawfulness of male
circumcision in the UK appear in two offhand comments by the
court in R v Brown [134] and R
v Adesanya [135]. In neither case is
supportive evidence given for these declarations. With a
similar lack of justification, Williams considered the
illegality of ritual circumcision `utterly absurd' [136]. Most commentary supporting
circumcision's legality relies on the untenable notion that
is in no way medically harmful [115,137].
On the other hand, several scholars have credibly argued that
neonatal circumcision could be prosecuted under current
statutes [26,138]. Adequate consent is the
usual source of privilege that may justify an otherwise
medically unjustified and harmful surgery. In the absence of
such consent, neonatal circumcision satisfies the definition
of criminal assault and battery. All assaults that inflict
bodily harm are illegal [139]. Brigman states that `since
circumcision is medically unwarranted mutilation and
disfigurement, it would appear to be a clear case of child
abuse' [8]. While there have been no
reported cases of successful prosecution of a male
circumcision that was performed to the standard of care and
to which the parents consented, this may be largely an
artefact of the cultural tolerance of a practice that other
cultures consider reprehensible. Numerous activities once
tolerated as lawful are now considered criminal, including
violence against one's wife, children, servants, or animals
[134]. Among the functions of criminal
law are protecting citizens, especially the young and
vulnerable, from what is injurious, and providing safeguards
from exploitation [140]. Brigman
recommends using existing state laws prohibiting assault and
battery to prohibit circumcision, but acknowledges that it
would be extremely difficult to obtain a conviction [8].

Discussion

American attitudes toward neonatal circumcision may be in
the throes of a paradigm shift [141]. The
medical justifications suggested for neonatal circumcision
are rapidly being exposed as myths, while the procedure's
defenders are becoming more vocal in their attempts to
prevent the truth about the procedure from being absorbed
into mainstream American culture [142-144]. However, cultural blindness is
likely to hinder progress in allaying the damage caused by
male circumcision. Laws generally reflect societal attitudes
and rarely herald dramatic social transformation. Likewise,
judges are more likely to respond to well-established social
trends than to be the vanguard of dramatic change. Courts
naturally view issues through society's social and cultural
prejudices [5].

There is little doubt that a physician who today performs
an operation with no therapeutic benefit, and which results
in significant risk and inevitable loss of function, risks a
civil claim for damages as well as censure from his
professional body. In the USA, circumcision commonly serves
as a basis for malpractice claims [145].
The current practice of inadequate disclosure of information
during the informed consent process may be responsible for
some of these claims. Citing Bolam vs. Friern Hospital
Management Committee [146],
Haberfield [72] argues that while a
physician is always obliged to fully disclose the risks and
benefits of a proposed procedure, as long as the physician
follows the practice accepted at the time by a responsible
body of medical opinion, the doctor cannot be held negligent.
However that analysis dose not take into account a recent
Irish court ruling that a doctor who follows a practice
approved by colleagues of similar specialities could
nevertheless be challenged if it can be established that the
practice has inherent defects that ought to be obvious to any
person who gives the matter due consideration [147]. Likewise under British law, physicians
cannot defend themselves from charges of
malpractice/assault/battery by stating that they were
`inspired by a belief in the efficacy of a pseudo-medical
treatment' [134]. Haberfield's suggestion
does not accord with the law in the UK or elsewhere; full
disclosure is required regardless of contemporary medical
opinion [148]

However, Haberfield also contends that circumcision's
`claimed prophylactic medical benefits' would help a
physician pass the Bolam test. In reality, the physician's
liability is related to the body of medical opinion and, more
importantly, to the validity of parental consent. In the
context of circumcision, the current American practice of
solicitation of a medically unnecessary operation with no
prior parental inquiry and unrequested consultation represent
glaring exceptions to ethically practised medicine [58]. In the absence of medical need, it is
hard to see how solicitation for this surgery amounts to
anything more than the exploitation of normal and healthy
children for money.

Conclusion

The medical community is violating the law through a
combination of faulty medical opinion, negligence and
inadequate consent [7]. Circumcision
amputates the prepuce from the penis, resulting in a
permanent alteration in the anatomy, histology and functional
integrity of the penis. The procedure is not without risk,
and horrific complications have been recorded in the medical
literature. For circumcision of a non-consenting minor to be
legally valid there must be a clear and immediate medical
necessity; unsolicited, uncoerced, fully informed parental
consent; and a determination that it is in the child's best
interest. It must be shown to a reasonable degree of
certainty that the child would, upon attainment of the age of
reason, desire circumcision for himself. For circumcision to
be permitted as a religious ritual, it would need to be
demonstrated that the child is virtually certain to practice
that religion upon attaining the age of reason and that the
child will suffer in some way from having the decision
reserved for him to make as an adult. Circumcision as
currently practiced on non-consenting minors fails to meet
that criteria.

There is no reason, other than cultural bias, why the
current child abuse laws and laws prohibiting female
circumcision are not applied to those performing involuntary
male circumcision. For those physicians currently performing
involuntary circumcisions, the only protection may be full
disclosure, but based on current legal precedent, this may
not be enough.